Making a complaint about discrimination

Making a complaint about discrimination

If you can’t resolve a matter by speaking with the person or organisation you believe is discriminating against you, you can make a complaint to the:

Victorian Equal Opportunity and Human Rights Commission

Australian Human Rights Commission

Victorian Civil and Administrative Tribunal (VCAT)

Fair Work Commission (if the discrimination relates to your work).

You do not need a lawyer to make a complaint, but it is a good idea to get advice before you lodge a complaint.

Choosing where to make your complaint

Complaints about discrimination under Australian law are handled by the Australian Human Rights Commission.

Complaints about discrimination under Victorian law are handled by the Victorian Equal Opportunity and Human Rights Commission and VCAT.

The Fair Work Act 2009 also protects employees against discrimination at work. You can apply to the Fair Work Commission if your employer has taken adverse action against you because of a protected attribute. For example, if you were fired because of your age, race, pregnancy, sex or religion.

Discrimination law is complex and it can be confusing knowing which option is the best one for you. If you complain to one place, sometimes you cannot later change your mind and complain elsewhere. So it is best to get legal advice before lodging a complaint.

There are many factors to consider when deciding which commission or tribunal to choose for making a complaint. These include:

the legal tests for discrimination, which vary under the different laws. There are pros and cons to each law, and deciding which law is most beneficial to you will depend on the circumstances of your case

whether the subject of your complaint is covered under the law (for example, if you want to complain about discrimination on the basis of your physical features, this attribute is protected under Victorian law, not Australian law)

where the conduct occurred (for example, if you were discriminated against when joining a sporting club, you could not complain under the Fair Work Act 2009)

the relevant time limits for making a complaint (the Fair Work Commission has a 21-day time limit for general protections applications relating to dismissal from employment)

the risk of legal costs if you pursue your complaint to a court or tribunal, as this varies depending on the type of complaint.

If conciliation at the commissions does not work

If the commission accepts your complaint, it can arrange for the people involved to talk through the issues and come to an agreement about resolving the complaint. This process is called 'conciliation'.

If your complaint does not resolve at conciliation, you may be able to go to the:

VCAT

Federal Court

Federal Circuit Court.

What you can do next depends on where you made your complaint.

If you lodged your complaint with the Victorian Equal Opportunity and Human Rights Commission

You can apply to the Equal Opportunity List at VCAT. There is no set timeframe for lodging an application with VCAT, although the application may be dismissed if it is not lodged within 12 months of the discrimination happening.

If you lodged your complaint with the Australian Human Rights Commission

You must go through the Australian Human Rights Commission conciliation process first before you can lodge an application. The commission will issue a notice that your complaint has been closed. This is called a Notice of Termination.

You must make your application within 60 days of the Notice of Termination being issued.

If you lodged your application with the Fair Work Commission

You must generally go through the Fair Work Commission conciliation process first before you can lodge an application. The commission will issue a certificate stating that reasonable attempts at conciliation were attempted, but were unsuccessful.

You must then lodge your application to the court within 14 days from the date of this certificate being issued.

Decisions made by the tribunal or courts

VCAT, the Federal Court and the Federal Circuit Court have the power to make decisions about your matter which are binding and must be complied with (unlike the commissions). The decisions can be appealed against.

If your complaint of discrimination is upheld, the tribunal or the court may order the respondent to:

stop the discrimination

provide a service to you

pay you financial compensation for what has happened

make various other orders to remedy the damage caused.

If the tribunal or court dismisses your application you may be ordered to pay the other party’s costs. You should get legal advice before you make an application.

About this website

Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.

How Victoria Legal Aid can help: Call us on 1300 792 387, Monday to Friday from 8.45 am to 5.15 pm, for free information over the phone about the law and how we can help you. You can speak to us in English or ask for an interpreter. You can also find more legal information at www.legalaid.vic.gov.au